Kees v. State

• Decision Date: 04 March 1903
• Citation: 72 S.W. 855
• Parties: KEES v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W. 855

KEES v. STATE.

Court of Criminal Appeals of Texas.

March 4, 1903.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

John Kees was convicted of an aggravated assault, and he appeals. Reversed.

Templeton & Harding, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of aggravated assault, and his punishment assessed at a fine of $25; hence this appeal.

The Assistant Attorney General has filed a motion to dismiss this appeal because of alleged defects in the recognizance: First, Because the recognizance does not recite that appellant was convicted of a misdemeanor, and the recitation that he was convicted of an "aggravated assault" is not a compliance with the statutes. We hold that aggravated assault (the same being a misdemeanor) is equivalent to a recitation that appellant was convicted of a misdemeanor, and the appeal will not be dismissed on this ground. And, second, because the recognizance uses this language, "and not depart without leave of the court," when it should read, "and not depart without leave of this court." The contention is that the use of the word "the" in that connection instead of "this" leaves it uncertain whether the district court or the Court of Criminal Appeals is meant; and refers us to Thompson v. State, 35 Tex. Cr. R. 505, 34 S. W. 124, 612. There is some difference between the recognizance in that case, which was pronounced defective, and the one here. In the former case, the expression "shall appear before this court" is omitted, while here it is inserted, and, following this, the article "the" is used instead of "this." It is not necessary to review the correctness of the holding in the Thompson Case, as there is a difference between the two cases. We hold, however, in this case, that the recognizance is sufficiently definite and certain to indicate the particular court before which appellant bound himself to appear. The motion of the Assistant Attorney General is accordingly overruled.

The theory on the part of the state tended to establish that Ed Derrett made an assault on T. L. Bentley at a show or exhibition of some sort at a schoolhouse, and that during the progress of the difficulty appellant came up to the parties and stabbed T. L. Bentley in the back. The state further insisted that said assault was made by Derrett on Bentley in pursuance of a previous conspiracy between Derrett, Phillips, Newman, and appellant. The state's testimony tended to show that said Derrett either made the first assault on Bentley or provoked Bentley to make the assault on him, and that the other parties joined in said assault. Appellant, on the other hand, urged that he had no connection with any conspiracy with said parties to assault said Bentley, and what he did at the time was merely to aid in separating Derrett and Bentley. During the difficulty Derrett used a knife, and Bentley used a pistol as a club. Appellant knocked Derrett down with his pistol, and Derrett cut him with the knife; and there was testimony on the part of the state tending to show that appellant also cut Bentley with a knife.

During the trial, the state proved, by the witness Jim Howell, that on the evening of October 10th, before the difficulty which occurred that night, John Phillips came to where he lived at Oak, some two miles from Ozro, and put in a phone call for Ed Derrett at Ozro; that Phillips took the receiver and started to talk, and said, "Oh, hell! I don't want Jim Newman; I want Ed Derrett;" and shortly afterwards asked over the phone if that was Ed Derrett, and then began talking to him, and inquired of him about "that...